Mental Health( Care and Treatment)(Scotland) Act 2003 Consultation in relation to section 268 appeals against conditions of excessive security

A consultation seeking views on the way forward in respect of appeals against excessive security for mental health patients following the Supreme Court decision of M v Scottish Ministers


21. The power to make regulations for persons within secure settings other than the State Hospital was created over ten years ago. Since that time much has changed and we are concerned that section 268, with its narrow scope, is no longer fit for purpose. It was drafted prior to the opening of the medium secure units at Rowanbank and Rohallion and does not take into account the very wide ranging security provisions across the medium and low estate, often within the same hospitals. Tribunals considering any appeals would require to hear oral evidence from a number of alternative hospitals before reaching a decision on whether, in light of the security measures in place in the alternative hospitals, the security measures to which the patient was currently subject were excessive or not. Regulations made under section 268, because of the nature of the provision, would not allow for the removal or reduction of excessive measures of security of a patient without a need for transfer to another hospital, which may be unnecessary as well as detrimental to the patient.

22. Furthermore, we do not have information at present to suggest there is a significant issue with entrapped patients held within lower levels of security. The National Forensic Network is currently reviewing patients detained within the high, medium and low secure estate. This will systematically review whether there is any problem for patients being held in conditions of excessive security outwith a high secure environment. The outcome of this review would assist in informing appropriate changes in legislation.

23. We therefore consider it necessary to look at repealing section 268, and as soon as they are available, consider the results of the review undertaken by the National Forensic Network to establish whether there is an issue of entrapped patients held in hospitals operating medium and low levels of security. Thereafter we will, if it is considered necessary or desirable, bring forward proposals for reform of the way levels of security are considered across the range of orders supervised by the Mental Health Tribunal. This way forward has been developed following the consultation event held by the Mental Welfare Commission in March 2013.[6]

24. At that event, a number of attendees questioned the need for an additional appeal against levels of security, given the lack of concrete information about whether individuals are being held in inappropriate levels of security, and the options that exist for practitioners to vary levels of security within a given setting.

25. There was also significant concern about the negative impact additional appeals would place on practitioners' time and the added pressure on the Tribunal system. Suggestions to mitigate this included a preliminary hearing prior to a full appeal to ascertain whether there is an arguable case to put before a full Tribunal Any such changes however must be of course be wholly compliant with the principles of the 2003 Act, which must continue to apply in all circumstances.

26. Over and above the question of an additional appeal provision, a number of suggestions were made around the role of the Tribunal in reviewing orders generally and the greater use of recorded matters to ensure patients move down through the levels of security appropriately. For example a patient's level of security is not necessarily considered at a review hearing. An option would be to require the Tribunal to consider levels of security as a matter of course.

27. We have considered the issues raised at the consultation event and seek views on the following:

  • The appeal provision in section 268 is restrictive and in particular does not allow for a change in security levels within the same hospital setting. Is there a need for a wider provision for an appeal against levels of excessive security?
  • If an additional appeal provision is created, do we need to provide for a preliminary review to consider the merits of the appeal before proceeding to a full hearing?
  • Compulsory Treatment Orders, compulsion and restriction orders and transfer treatment directives are currently reviewed by the Mental Health Tribunal at least once every two years. Levels of security are not necessarily discussed at these reviews. Should we require levels of security to be considered by the Tribunal as a matter of course, with an accompanying right of appeal if the question of security has not been addressed?
  • Can more effective use be made of recorded matters by the Tribunal with regard to levels of security in Compulsory Treatment Orders?
  • Are there other changes to the review system that you consider may help to support and develop further the effective movement of patients through the secure system?

28. We consider that these questions, in conjunction with a review of the secure estate to consider whether patients held in hospitals operating medium and low levels of security are subject to excessive levels of security, will help us to establish what changes may be necessary to ensure that all patients are treated and managed at the level of security appropriate for their needs. It would mean taking forward a repeal of section 268 at the earliest legislative opportunity, followed, if necessary or desirable, in early course by changes to primary legislation .



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